Academic Research International Vol. 6(1) January 2015
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The Existence of Religion Norm in the Political Law Struggle
in Indonesia
Sirajuddin M.
Student of Doctor Program in Jurisprudence, Law Faculty,
Brawijaya University, Malang, INDONESIA.
ABSTRACT
The academic problem of this research was why religion norm must be the material
source of local regulations. Meanwhile, it is known that Indonesia is a nation-state
based on Pancasila and UUD 1945 (Constitution of 1945). To answer these
problems, this study examined the significance, position and function of religious
norms for the regulation of religion. The results showed that the religious norms have
important significance in the formation of local regulations because this process is
part of the political process of law in Indonesia, so that although Indonesia is not a
religion state, but this Pancasila state has accommodative policy towards the
existence of religious norms as one material source of positive law, as stated in the
first principle of Pancasila and the 1945 Constitution Article 29. In Hans Helsen’s
theory, religious norm as a source of substantive law in the area of regulation is
constitutional.
Keywords: Religious Norms, Constitutional and Politics Law
INTRODUCTION
In political reality, Indonesia as the Pancasila state is constitutionally not a religion state, but
this state often adopts the norms of religion in the formation of legislation. Therefore, the
Pancasila state cannot be called as religion state (in a sense of a particular religion) and also
cannot be called as a secular state (in the sense of a country which does not deal with religion
at all). The Pancasila state has given particular attention to the norms of the religions
professed by the citizens as far as in accordance with the principles of fairness and civility. In
the unique attention format, the religious people have the opportunity and freedom to impose
their religious norms. At the same time, religious communities in Indonesia have a bond and
obligation to obey and enforce the national law (laws procedural legalized by the
representative people council). Some of the leaders of the religious people in 1945 and 1950,
in BPUPKI, PPKI and Constituent had tried to fight for theformalization of certain religious
norms (read: Islamic law) through the legal-formal to make religious norms as the state
principle, but the final decision about the state principle and constitution which were decided
did not accept the idea of a religious state or obligation to run a total of religion law for its
adherents. The founders and decision makers about the state of Indonesia have set this
country as a state and national unity with Pancasila as its principle to accommodate the
plurality of religion or culture. In the course of law in Indonesian politics, the ups and downs
occur. In the early days of the New Order state is secular, but by the last half of the New
Order regime started building accommodating stance towards religious norms, such as the
enactment of Law No. 1 of 1974 which regulates marriage and other even though at that time
the State was centralized and authoritarian character. Although essentially, the Constitution
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of 1945 precisely embraced Unitary State that recognizes plurality, good local knowledge,
customs, local democratic atmosphere, local wisdom, and the capacity of the government.
The birth of Reform Order which gave autonomy to the regions has given a significant
change to the state / government system of Indonesia generally and local government
particularly.
The decentralized system has provided the freedom and independence to local communities
in the planning and decision-making process, especially concerning the interests of local
communities, so that the significance of decentralization often becomes the trigger in the
formation of local regulation which have nuances of wisdom or religion, so it is as if the
system can reduce the sense of justice for the wider community. Whereas the purpose of
granting regional autonomy is to enhance the role and function of local legislative committee
to empower, foster the people’s initiative and creativity .
Due to the paradigm shift from centralized government system (New Order) to a
decentralized government system (Reformation Era), it is also affect the rights, obligations
and authority of each government structure, both at the central and regional levels which one
of the vision in the social and culture area is to "build social harmony while maintaining local
values that are considered conducive".
In the decentralized era, there are various norms affecting the way a person to act and behave.
Norms developed in Indonesia is customary/traditional norms, religious norms and moral
norms. Those norm differences can be seen, for example in the norms of customary law in
Indonesia. Customary norms are always applied in accordance with the custom of the
community, for example in the tradition of inheritance that follows matrilineal system in
Minangkabau region. Similarly, religious norms have experienced rapid development after
decentralized systems which are marked by the birth of a number of religious regulations in a
number of areas.
The birth of religious local regulations could not be separated from the conducive political
climate as set forth in the amended Article 18 paragraph (6) of the Constitution of 1945
regulating the authority of local regulations establishment and the mandate of law No. 12
Year 2008 regulating on the implementation of effective local governance by paying attention
of the principles of democracy, equality, justice, and rule of law in the system of the Republic
of Indonesia. Nevertheless, the ubiquitous emergence of a number of local religious
regulations in some areas has led to fears to some members of 56 members of Republic
Indonesia Parliament. They worry if religious regulations can make this country as a religion
state. However, the rule of law still applies as well as the theory of Hans Kelsen.
RESULT AND DISCUSSION
In order to explore the evolving law in the society, the application of French law regarded as
a progress and development in the West, must also be applied to the application of religious /
Islamic law as part of the progress and development, not regarded as a setback and
underdevelopment as perceived by some people who do not like the Islamic law application /
legislation in the national legal system.
The measure used to determine whether a product is used or not should no longer be
measured by the period of the birth of the law, because if it is used, it is certainly much
longer expiry of legal principles derived from Ancient Roman Law, because the kingdom of
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Ancient Rome have existed long before the advent of Islamic law. In fact, the law was
developed and then translated into French and Dutch law, and those laws are still undertaken
as positive law.
Studying the history of religious law legislation, including the Islamic law, as an essential
part of the national legal system has significance because it has become part of the cultural
life and the life of the state before Indonesian being independent from the Dutch and
Japanese colonization.
In sociological and cultural, religious (Islamic) law have fused and become living law in the
community. In some areas, such as Aceh, South Sulawesi, Minangkabau, Riau and Padang,
Islamic law has become a way of life and the basis of equal and customary laws or traditions
of local ancestors. These conditions can be proofed by the proverb saying that "custom is
based onsyara’, syara’is based on kitabullah”. Both of them reflect the close interaction
between Islamic law with the local custom. Thus, the religious (Islamic) law has basically
grown and rooted since the early days into the territory of Indonesia. The development of
religious law in Indonesia both conceptually and practically is quite well-developed and
dynamic in times of XVII, XVIII, and XIX century.
In the Dutch colonial period, the existence of religious (Islamic) law which came during the
Islamic empire had been carried out full-consciously by its adherents as a reflection on the
acceptance of Islam as a religion, so that the existence of deep-rooted religious law among its
adherents have encouraged the Dutch colonial at the first time they arrived in Indonesia in the
17th century AD, to acknowledge the existence of Islamic law as part of the lives of Muslims.
Netherlands issued a policy to the existence of Islamic law, through the office of the Dutch
trading VOC (1602-1880 AD), on May 25, 1760, the Resolutie der Indshe Regeering law
containing a set of rules stating marriage laws and Islamic inheritance law for use in VOC
court for the Indonesian people.Historically, this resolution known as the Compendium Friyer
legislation recognized as the first Islamic religious law in Indonesia. This can be proofed, in
Cirebon area, it has been known a legislation product called Pepakem Cirebon, and
previously there has been Babad Tanah Jawa and Babad Mataram, which a lot of the
contents of the book were adopted from Islamic law. Other evidence of the existence of
Islamic law legislation in the Dutch colonial era is by the existence ofMogharrer or in a full
name, Compendium der Voornamshe Javaanche Wetten Naukering Getrokken Uit Het
Mohammaedaanche Wetboek Mogharrer which material were taken from the holly bookalMuharrar by Imam Rifa’i containing Islamic criminal law and custom, used in the residency
of Semarang, Central Java. Dutch colonial politics is actually quite advantageous for the
position of Islamic religious law, at least until the end of the 19th century AD, by the
issuance of Staatsblad No. 152 year 1882 which both set and also acknowledged the
Religious Court in Java and Madura.
During the Japanese colonization, after ruling more or less three and a half centuries, the
Dutch government could then be defeated by Japan in only two months which marked the
end of the western colonial period in Indonesia. However, the transition from Dutch to
Japanese colonization still brought distress and suffering to the people. Japanese policies
regarding the implementation of Islamic law in Indonesia did not give any change to some
laws and regulations. Similar to the Netherlands in the early days of colonial era, the
Japanese regime maintained that "customs" local, practice habits, and religions could not be
intervened temporarily, and in the matters related to the affairs of the civilian, social customs
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and laws, they must be respected, and speciall arrangement was needed inorder to prevent the
emergence of any form of unwanted resistance and opposition. Nevertheless, the influence of
Japanese government policy on the development of religious (Islamic) law enforcement in
Indonesia was not so apparent. It was because the Japanese invaded Indonesia in a short
period, the visible thing was only the institutional structure of Islamic Courts.
Religious (Islamic) law enforcement struggles does not stop at the level of legal recognition
of religious law as a legal subsystem living in the community, but also requires the need for
legalization of religious law in the state system into positive law, not only the substance. This
phenomenon appeared at least simultaneously with the birth of the Jakarta Charter of June 22,
1945 which was marked by the first principle, which reads: "belief in one God with the
obligation to run the Islamic shariah for its adherents". Religious law legislation struggle as
national law had started downcast since August 18, 1945 where the team success of Islamic
religious groups were not able to maintain the seven last words due to a sharp polarization
between the founders and minority residents. With the loss of seven words, it was considered
by some people that it would cause trouble for legalizing religious law in the framework of
the constitution of the State. In contrast to these interpretations, Mohammad Hatta found
Pancasila primarily first principle, “Ketuhanan Yang Maha Esa (Belief in the one and only
God)” is a guiding principle for the ideal state in Indonesia and is also the basis of the
following principles. The loss of seven words is not an obstacle to impose religious norms
who live in the community. Pancasila remains as the spiritual and ethical principles that
provide good guidance to the people and the nation. By placing principle “Ketuhanan Yang
Maha Esa (Belief in the one and only God)” as the first principle, the State has gained a solid
foundation.
In the Old Orde, the position of religious law is no better than the Dutch colonial period.
Sukarno’s view of religion is very secularistic although at the beginning of the formation of
the State of Indonesia, in BPUPKI convention, Sukarno accepted and agreed to the existence
of the Jakarta Charter, but Sukarno then be realistic about the condition of the plurality of
Indonesian society that not only Muslims, but also there are Buddha, Hindu, Christian and
Catholic religion, so he then took the middle road. Even so, it seems unfair to not mention
some form of religious law developments in this era. At least the Ministry of Religious
Affairs was established on 3 January 1946 became a milestone along the road of religious law
(Islam). By the formation of the Department of Religion, the authority of the Religion Court
has been transferred from the Minister of Justice to the Minister of Religious Affairs.
New Order government had started since the release of Warrant Eleven (Supersemar) in
March 1966. This administration regime since the last half, began to make accommodations
attitudes towards religious aspirations, especially Muslims. The presence of the Marriage Act
of 1974 is the historical evidence that the religious law (Islam) climbed a new phase, the
phase taqnin (enactment), Law No. 7 of 1989 on the Religious Courts, a judicial institution
specifically earmarked for Muslims who have strategic value, because its existence provoke
the birth of new regulations as a complement, namely Presidential Decree No. 1 of 1991
which contains about Compilation socialization of Islamic Law (KHI), the National
Education Act, the birth of ICMI, Law No. 7 of 1992 concerning banking, which implicitly
allows the establishment of Sharia Banks. These all are evidences of the development of
religious law and religious laws thinking products increasingly place religious principle and
existence as one of the material in the formation of a national law.
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During the Reform Era, demands for imposing religious norms were stronger after Indonesia
treading a new era in nation life, namely the transfer of political power from the New Order
government to the transitional government BJ Habibi. The suit got a positive response from
the reform era government at that time, so was born a number of attempts to impose religious
law norms / Islam in the level of positive law in Indonesia. Some legislation can serve as a
proof of legal legislation religion (Islam), of which Law No. 38 Year 1999 on the
management of zakat, and Law No. 17 of 1999 on the organization of Hajj as well as Law
No. 3 of 2006 on the amendment of Act 7 of 1989 on the Religious Courts. Meanwhile in the
field Muamalat, Law No. 10 of 1998 on the amendment of Law No. 1992 on Banking. This
law became one of the Government's policy in the Habibi BJ improve Indonesia's economic
crisis.
Further more, religious norms that have been conducted in the community could no longer be
called religious norms because there has been acceptance from the community, so that it is
considered and used as a day-to-day customs. This is then known as Reception
Theory(Receptie Theory). Meanwhile, Van Den Berg and friends think the deviation is
stillreligious norm, because what is conducted is religious norms, then it was known as the
"Theory of following religion"(Receptie in Complexue). In the subsequent developments,
the Dutch scholar Snouck theory captured the idea of various and the different foundation's
view of thinking. Cornellis Van Vollenhoven states that the inheritance law in force in
Indonesia is customary law, not religious norms. This idea is supported by other leaders of
customary law, including Tar Haar and Indonesian people who were in Leiden, the Supomo.
Therefore, until 1989, reception theory is applicable in accordance with what is stated by Van
Volenhoven, Tar Haar and Supomo, not as described by Snouck. Van Volenhoven further
considered that the religious norm of is not a law, but Snocuk judge that religious norm is
law, only the religious norms can be applied if it can be accepted and become part of people's
daily life.
Religious norms affected a lot of thought and spirit of independence and the establishment of
the Republic of Indonesia. By the Proclamation of Indonesian Independence on August 17,
1945, the position of religious norms generally is not changed and still serves as a special
legal system of Indonesia in a particular field. That position is realized through the provision
that the Republic of Indonesia is a country based on the principle “Ketuhanan Yang Maha
Esa (Belief in the one and only God)".Principle contained in the Preamble and Article 29
paragraph (1) of the 1945 Constitution in accordance with the Charter of the Jakarta June 22
1945 Article 29 Paragraph (1) of the 1945 Constitution followed by Paragraph (2) which
reads, “Negara menjamin kemerdekaan tiap-tiap penduduk untuk memeluk agamanya
masing masing dan untuk beribadat menurut agamanya dan kepercayaannya itu (The State
guarantees the freedom of each citizen to embrace each religion and to worship according to
their religion and belief)". Constitution of 1945 outlined that Indonesia is not a secular state
as the West and the Communist State. Indonesia is not a country or state religion of Islam as
some Middle Eastern countries. In accordance with the principle “Ketuhanan Yang Maha
Esa (Belief in the one and only God)“, Indonesia adopts a state law that gives exposure to
the applicability of the norms of religion, culture and customs.
Since the reform era, the current imposition of religious norms, including the norms of
Islamic law, Christianity norms and Hinduism norm, have been increasingly widespread. This
suggests that religious norms have an important role in the formation of laws and regulations,
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including regulations which are stricken / localistic legislation. However, local regulations
emerged prevalently since the reform era was considered problematic by the government
because of the presence of some regulations that were exclusive and elitist, not populist. In
fact, local regulations born in a democracy should be general and cover all the interests of the
community in the area. One example of religious regulations / qanun of which regulations are
based on the norms of Islam, Hindu and Christian as follows:
Peraturan Daerah Kabupaten Lampung Selatan Nomor 4 Tahun 2004 Tentang Larangan
Perbuatan Prostitusi, Tuna Susila, dan Perjudian Serta Pencegahan Perbuatan Maksiat
Dalam Wilayah Kabupaten Lampung Selatan (South Lampung Regency Regulation No. 4 of
2004 on the Prohibition act of prostitution, prostitutes, and immoral acts Prevention And
Gambling In South Lampung regency). Prohibition of misconduct is based on the norms of
Islam, so that the action described in the terms "weigh" as follows, that the despicable act
contrary to religious teachings, customs and values of Pancasila as the basis for National
Development.
Qanun Provinsi Nanggroe Aceh Darussalam Nomor 13 Tahun 2003 Tentang Maisir
(Perjudian) ( Province of Aceh Qanun No. 13 Year 2003 on Maisir (Gambling) .The scope
and purpose and the prohibition and prevention contained in some Article 2 states that maisir
(gambling) is all forms of activity and / or conduct and the circumstances that led to the
betting and can lead to harm to those who bet and people / institutions involved in the bet.
Religious laws based on Hindu religious norms are also contained in the Bali Provincial
Regulation No. 03 Year 2005 on Spatial Planning of Bali Province from the Governor of Bali
which states that development in the area of Bali which has grown rapidly, especially in the
field of tourism and small industry , has spawned a number of large-scale change and cause
significant deviations, so that the regional government of Bali to adjust the dynamic spatial
layout in one unified environment based on Balinese culture imbued Hinduism, while
maintaining environmental sustainability in accordance with the philosophy of Tri Hita
Karana for realizing just and prosperous society as the implementation of Pancasila through
the Spatial Plan resolution. In Article 19, paragraph (4), the Hindu regulation establishes
criteria of shrine area.
The law based on religious norms of Christianity in Manokwari, Peraturan Daerah
Kabupaten Manokwari Nomor 5 Tahun 2006 Tentang Larangan Pemasukan, Penyimpanan,
Pengedaran dan Penjualan Serta Memproduksi Minuman Beralkohol (The Manokwari
Regency Regulation No. 5 of 2006 on the Prohibition of Importation, Storage, and
Distribution of Alcoholic Beverages Producing And Sales). Consideration of the legalization
of the Christianity regulations is based on the consideration of religious norm that says that
Manokwari as the first entry of the Gospel in Papua, and which is now regarded as the City of
the Gospel and City Civilization Papuans.
CONCLUSION
The birth of the religious laws becomes indicator that religious norms have significance in the
formation of local regulations. The imposition of religious norms of the positive law is also
part of the process of democratic political policy. Although Indonesia is not a religion state,
but the State of Pancasila, it still recognizes the existence of religious norms as one of the
sources of positive law, as stated in the first principle of Pancasila and the Constitution of
1945 Article 29. Therefore, the position of religious norms as a source of substantive law in
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the local regulations is constitutional. In terms of its function, local regulations derived from
religious norms will have a behavior power that is more effective and efficient for the
community because they believe they have run their state legal obligations and religious
obligations at the same time.
ACKNOWLEDGEMENTS
This article is dedicated to civitas academica of Brawijaya University. They have already
contributed significantly to this article
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